In his book Active Liberty: Interpreting Our Democratic Constitution, Justice Stephen Breyer maintained that the primary purpose of the First Amendment “goes beyond” protecting the individual from government restrictions.
“First and foremost,” Breyer wrote, the First Amendment “seeks to facilitate democratic self-government.”
When it is correctly viewed, he maintained, one must “understand the First Amendment as seeking primarily to encourage the exchange of information and ideas necessary for citizens themselves to shape that ‘public opinion which is the final source of government in a democratic state.’ ”
In his dissenting opinion in the McCutcheon v. Federal Election Commission case, relating to limitations on the total amount of contributions a donor may make to candidates for Congress, in which he was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, Breyer argued similarly.
“The First Amendment,” he wrote, “advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” The First Amendment, he urged, must be understood as promoting a “government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects.”
These views offer a double-barreled First Amendment, one that addresses not only the risks of governmental control over speech but the desirability of a government truly responsive to the views of the public. But there is reason to doubt that the First Amendment can serve both ends.
“First and foremost,” after all, the First Amendment seeks to protect against the dangers of government overreaching into areas where government itself is especially dangerous — freedom of religion, speech, and press. At its core, it is not about promoting “collective speech” but of avoiding the imposition of just such speech by the government.
One of the benefits of the First Amendment is that it generally leads to a better-informed public and ultimately a more representative government. But we surely would not allow particular speech to be suppressed because the government decided that it led the public to become ill-informed or less enamored of representative government.
That sort of censorship is the opposite of what the First Amendment is about.
The notion that First Amendment interests are served whenever laws genuinely reflect public opinion also seems to overlook the reality that the public too often seeks to suppress speech it disapproves of. Speech is sometimes ugly, outrageous, even dangerous. The understandable public response to such speech is often one of disgust, revulsion, and sometimes anger. And support for taking steps to ensure that the offending speech does not recur.
Floyd Abrams is the author of The Soul of the First Amendment (Yale University Press, 2017). He will discuss his book at noon Monday at the National Constitution Center. For information, visit constitutioncenter.org/debate or call 215-409-6700.